Line to take

If a reasonable in substance and reasonably arrived at opinion has been given by the qualified person, by the time of the completion of internal review, then s36 will be engaged.

If a reasonable in substance and reasonably arrived at opinion has not been given by the qualified person by the time of completion of the internal review, then the Commissioner has discretion as to whether he accepts the late claiming of s36 or a further opinion as a late correction of flaws in the application of s36.

Further Information

As per LTT17 (Investigation of the reasonable opinion of a qualified person) and LTT35 (Interpretation of ‘reasonable opinion’), in order to establish that section 36 is engaged, case officers will normally need to establish that an opinion has been given by the qualified person that is both reasonable in substance and reasonably arrived at.

Any references in this LTT to a “reasonable opinion” should be taken to mean an opinion that is both reasonable in substance and reasonably arrived at.

This line is supplementary to LTT17 and LTT35 and provides guidance as to how case officers should deal with flaws in the application of section 36.

The Internal Review

The first point to note is that the internal review is a chance for a public authority to reconsider its original decision and correct any mistakes. Therefore if a reasonable opinion has been given by the qualified person, by the time of completion of the internal review, then s36 will be taken to be engaged. The decision in Mcintyre v the Information Commissioner confirmed this approach:

Firstly at para 31 specifically in relation to flaws in the process followed by the qualified person in arriving at their opinion the IT stated that “even if there are flaws in the process these can be subsequently corrected, provided this is within a reasonable time period which would usually be no later than the internal review”.

Secondly at para 38 in relation to the general application of the Act it said “However the Act encourages or rather requires that an internal review must be requested before the Commissioner investigates a complaint under s.50. Parliament clearly intended that a public authority should have an opportunity to review its refusal notice and if it got it wrong to be able to correct that decision before a complaint is made.”

This should not be taken to mean however that LTT92 — the timing of the public interest test- does not apply where an opinion is only obtained at internal review stage. The relevant date for consideration of public interest factors will still be the time of the request or by the time for compliance with sections 10 and 17 FOIA. In other words, errors can be corrected at internal review stage by reference back to the circumstances in existence at the time of the request.

Where the Public Authority claims s36 for the first time in the course of the ICO investigation or before the Tribunal

LTT21 clarifies that where a public authority claims any exemption for the first time in the course of the ICO investigation, then the ICO has discretion as to whether or not to consider this exemption, and that there should be reasonable justification for such a late claim. Case officers should refer to LTT21 for general guidance in this respect and should also note the following comments specifically in relation to s36.

The ICO view is that this practice should be discouraged and that, in addition to us requiring reasonable justification for a late claim, it may increase the likelihood of us concluding that the opinion is not a reasonable opinion. This is because it increases the scope for errors in the Qualified Person’s opinion, such as taking into account factors that did not exist at the time of the request, or not giving sufficient weight to the circumstances that did exist at the time because events have since moved on. (See LTT35 for further discussion on the interpretation of a reasonable opinion.)

Where the process by which the Qualified Person’s opinion was reached was flawed in some way

In some cases there may be a flaw in the way the opinion was reached, for example the Qualified Person may have based their opinion on a viewing of the wrong information or an unclear description of the request and/or the requested information. This situation arose in the Mcintyre case where the MoD sought the opinion of the qualified person two further times in order to correct flaws they had identified.

Again the comments above in relation to corrections made at Internal Review stage will apply. So whatever the flaw(s) in the process by which the Qualified Person’s opinion was reached, if these have been corrected at Internal review then the correction(s) should be accepted.

Where there are flaws in the process by which the Qualified Person reached their opinion and these have not been corrected at Internal Review stage then the ICO has discretion as whether to accept the late correction of flaws during the course of the ICO investigation. Mcintyre states that a reasonable time period for correction of flaws in this process will usually be no later than internal review. The ICO interprets this to mean that there may be particular circumstances where a reasonable time period could be later than the date of Internal Review.

Allowing use of discretion in this circumstance is consistent with allowing use of discretion where an exemption is claimed for the first time during the course of the ICO investigation. In accordance with this view that there must be reasonable justification for accepting the late correction of flaws in the process by which the Qualified Person’s opinion was reached.

However, case officers should also refer to LTT35 on the interpretation of a reasonable opinion. This again refers to the Mcintyre case where the IT comments that “where the opinion is overridingly reasonable in substance then even though the method or process by which that opinion is arrived at is flawed in some way this need not be fatal to a finding that it is a reasonable opinion”. This means that if the Qualified Person’s opinion is overridingly reasonable in substance then flaws in the process may remain uncorrected.

Where the Public Authority cites section 36 without having first sought the opinion of the Qualified Person

In accordance with the section on Internal Reviews above, if the public authority initially refused under section 36 without having obtained the Qualified Person’s opinion, but then obtained the Qualified Person’s opinion at Internal Review stage then this opinion should be considered.

If the public authority has cited s36 without first obtaining the Qualified Person’s opinion, and then doesn’t take the further opportunity of the Internal Review to rectify this omission then the Commissioner will need to exercise his discretion in how to proceed.

In this situation, at the point at which the ICO investigation commences s36 has clearly not been engaged because the Qualified Person’s opinion has not been sought. Allowing the public authority to seek the Qualified Person’s opinion during the course of the investigation could be seen as allowing it to correct a flaw in the process at a late stage or alternatively as allowing it to properly claim s36 for the first time during the course of the ICO investigation (the initial claim being invalid).

The ICO view is that, whichever way this is seen, in this situation there will need to be reasonable justification for allowing such a late claim / late correction and that this justification may be difficult for the public authority to supply. This is because it cannot claim that it had only recently realised that s36 might apply, and, because obtaining the Qualified Person’s opinion is so fundamental to engaging section 36, it would be difficult to maintain an argument that it didn’t realise it had to obtain such an opinion.

Sugar v ICO and BBC and the late claiming of s36.

In the case of Sugar v ICO and BBC, the Tribunal agreed with the principles taken in the cases of BERR and Home Office on the late claiming of exemptions as discussed in more detail under LTT21. However, the Counsel for the appellant had argued that the late application of exemptions did not extend to s36 because it requires the reasonable opinion of a qualified person. The IT summarised Counsel’s arguments at paragraph 9 as:

The BBC Trust which is now the designated ‘qualified person’ was not the same person at the time of the request (it was the BBC Governors).

The wording of s36(2) requires that the exercise of seeking the opinion of the qualified person is at the time of the request, and not later.

The Tribunal disputed this view, and in line with the Commissioner’s approach, the Tribunal emphasised that s36 should not be treated differently from other harm or prejudiced based qualified exemptions. The Tribunal did not agree that the wording of s36(2) requires the opinion to be obtained at the time of the request (paragraph 10). The Tribunal stated that “the section only requires that a reasonable opinion is obtained as to whether there would, or would likely to be prejudice to the effective conduct of public affairs before the exemption is claimed (emphasis added). As a result we do not agree that any change of qualified person matters provided the qualified person is designated as such at the time he/she gives the opinion” (paragraph 10). Therefore, regardless of the change in qualified person, or when the opinion is given, as long as the opinion of the designated qualified person is based on the facts at the time the request is made, the Commissioner will accept that opinion, and then go on to consider whether it is reasonable in substance and reasonably arrived at.

The Commissioner also considers that the complete failure to obtain the Qualified Person’s opinion is such a fundamental flaw that if it remained uncorrected it would be a fatal flaw even if the “opinion” were overridingly reasonable in substance. Alternatively it could be said that in reality, because no opinion has been given, there is no opinion to judge as overridingly reasonable anyway.

Impact of guidance and past experience

Mcintyre recommends that the ICO provides guidance for public authorities as to the way the opinion of the qualified person is sought. Whilst this guidance has not yet been published, the Commissioner considers that once it is, the application of s36 may be expected to be better executed and evidenced by public authorities. There should be less reason to accept late correction of flaws in the process by which the qualified person gave his/her opinion where this opinion is given after the date of publication of our guidance.

Also, if it is apparent that the public authority is fully aware from past experience of the standard expected in relation to s36, but chooses to wilfully ignore this standard when dealing with complainants and to adhere only upon the ICO’s involvement, then the ICO may decide that there is not reasonable justification to accept the late correction of flaws or the late claiming of s36. (This may be less of an issue when dealing with “backlog” cases, and more relevant when considering recent complaints)